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LaCourse v. Frezza

Superior Court of Rhode Island

April 11, 2014

CAROL LaCOURSE
v.
BERNARD FREZZA, ANTHONY PILOZZI, JOSEPH ANZELONE, RICHARD FASCIA, THOMAS LOPARDO, DENNIS CARDILLO, and ALBERT COLANNINO in their capacities as Members of the Johnston Zoning Board of Review; and JOSEPH CHIODO, in his capacity as the Finance Director of the Town of Johnston

Providence County Superior Court

For Plaintiff: John O. Mancini, Esq. Joelle C. Sylvia, Esq.

For Defendant: Joseph R. Ballirano, Esq.

DECISION

VAN COUYGHEN, J.

The matter before this Court is an appeal from a decision of the Town of Johnston Zoning Board of Review (Board) denying Carol LaCourse's (Appellant) application requesting dimensional relief. In its decision, the Board denied Appellant's request for dimensional relief from lot frontage and building height requirements. The Board held that Appellant's claim of hardship was based upon economic reasons; that the proposed house did not fit the general character of the neighborhood; and that the requested relief was not the least relief necessary. For the reasons set forth herein, this Court vacates the Board's decision.

I

Facts and Travel

The application submitted to the Board by Appellant sought dimensional relief from the lot frontage requirement for her property located at 19 Bishop Hill Road in the Town of Johnston (Property). (Appellant's Ex. B.) Specifically, Appellant requested 87.92 feet of lot frontage relief on her application.[1] Id. The public hearing for the Appellant's request for dimensional relief was advertised by the Board and was consistent with the relief sought in the application. (Appellant's Ex. E.) The notice of the hearing provided that Appellant was requesting dimensional relief solely from the frontage requirements of the ordinance. Id.

At the hearing held before the Board on May 30, 2013, Appellant's request for relief deviated from the relief sought in the original application. In addition to relief from the frontage requirement, Appellant also requested dimensional relief from the building height requirements of the ordinance. (Tr. at 2.) Specifically, Appellant requested a dimensional variance of four feet from the building height requirement, as the proposed home would be thirty-four feet in height. Id. The Town's table of dimensional regulations limited a building's height to a maximum of thirty feet in an R-40 zone.[2] See Article III, § 340-9, "Table of Dimensional Regulations for the Zoning Ordinance of the Town of Johnston." The Board was apparently unaware that the height relief was not requested in the original application because Appellant was allowed to proceed on that basis. Thereafter, in support of her application, Appellant presented testimony and produced evidence with respect to her request for dimensional variances for both lot frontage and building height. See generally Tr.

After the hearing, the Board voted to deny Appellant's request for relief from both the lot frontage and the building height requirements. (Decision at 2.) Aggrieved by the Board's decision, Appellant timely filed the instant appeal.

II

Standard of Review

Prior to conducting a hearing, a zoning board of review is obliged to give public notice and due notice to all parties in interest. G.L. 1956 § 45-24-41; Ryan v. Zoning Bd. of Review of New Shoreham, 656 A.2d 612, 615 (R.I. 1995). Compliance with such notice requirements is a prerequisite to the exercise of the jurisdiction of zoning boards of review. Id. (citing Zeilstra v. Barrington Zoning Bd. of Review, 417 A.2d 303, 307 (R.I. 1980)). Therefore, any decision made by a zoning board that has not provided adequate notice to the public is a nullity. Corporation Serv., Inc. v. Zoning Bd. of Review of East Greenwich, 114 R.I. 178, 180, 330 A.2d 402, 404 (1975).

If a zoning board complies with the statutory notice requirement, this Court has jurisdiction to review the merits of the zoning board's decision ...


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